by Robert E. Hornberger, Esq | May 16, 2013
Landmark Marriage Equality Cases Being Heard in Supreme Court
There are two landmark cases in the Supreme Court regarding Same-Sex Marriages.
Is Prop 8 Unconstitutional?
The first case, Hollingsworth v. Perry is about whether or not Proposition 8, which banned Gay Marriage in California, is unconstitutional. As it stands right now, the 9th District Court struck down Proposition 8 as unconstitutional. On March 26th, the Supreme Court heard oral arguments for this case. In a surprising curveball, Chief Justice Roberts interrupted the Attorney representing supporters of Prop 8, Mr. Charles Cooper, by asking whether or not they even had the right to have their case heard in the Supreme Court. This is known as “standing.” Many Justices then asked follow up questions to see if Mr. Cooper had any evidence of injury, which would qualify him for standing. Obviously, it is unclear whether or not this case will even be argued for its substance, or if it will be dismissed based off procedural findings. Either way, the Supreme Court is about to make a decision that affects, at the very least, the citizens of California and even more so, of the United States.
Does DOMA Violate 5th Amendment?
The second landmark case is United States v. Windsor. This case is about the Defense of Marriage Act (or, DOMA) enacted in 1996. This Act definitively states that, under Federal Law, marriage is between a man and woman. This does not mean that under State Law that same sex couples cannot wed (as of now, anyway). What DOMA does is prevent same sex marriages from receiving the same tax benefits on the federal level that heterosexual couples enjoy. This leads to the major issue in the case, that this act violates the 5th Amendment’s guarantee of equal protection. The Oral Arguments for this case were heard on March 27th, and it will be an interesting case for the entire country.
Contact Us for More Information
The attorneys at Hornberger Verbitsky, P.C. are conscientious about staying abreast of the latest legal matters in Nassau County and Suffolk County Divorce and Family Law Courts on Long Island, NY and are available to answer your questions regarding these matters at any time. For a free private consultation about your needs, contact the experienced attorneys at Robert E. Hornberger, PC at 631-923-1910 or fill out the form on this page and we’ll get right back to you.
by Robert E. Hornberger, Esq | Apr 4, 2013
Marriage Equality in New York State
With the British House of Commons and French National Assembly recently passing a bill allowing for same-sex marriage, as a Long Island, NY family law attorney, I thought it would be a good time to discuss the New York State Marriage Equality Act of 2011.
The New York Marriage Equality Act of 2011 allows for gender-neutral marriages for both same-sex and opposite- sex couples. While essentially legalizing gay marriage, the Marriage Equality Act also protects religious-supervised institutions, their employees, or clergy from legal action for refusing to sanctify or recognize marriages that contradict the beliefs of their own religious doctrines. In other words, a religious institution, like a Catholic Church, etc. is not required to marry a same-sex couple just because the State of New York allows it.
Essentially, if you are a same-sex couple who wishes to be married, you can be married under the eyes of the law in New York State. Religious institutions, however, are legally protected from recognizing or sanctifying the marriage. After the bill passed, a Marist poll showed that 63 percent of people didn’t want the law overturned.
If you are a same sex couple who wishes to be married on Long Island, you can submit an application in person for your license at any town or city clerk outside of New York City. The application for a license has to be signed by both applicants in the presence of the clerk. New York City has different requirements than Long Island so the couple has to go to the New York City clerk and follow their procedures. As for opposite-sex couples, once a same-sex couple obtains the license, the couple has to wait 24 hours to get married.
Since the law was passed, multiple lawsuits have been filed attempting to negate the same-sex marriages the law has allowed, but thus far, all have been dismissed. In fact, the highest Court in New York State, the Court of Appeals, has denied hearing any cases.
Contact Us for More Information
If you have any questions regarding New York State Marriage Equality Act of 2011 or any other Family Law or Divorce matters on Long Island, give us a call at 631-923-1910. The divorce law office of Robert E. Hornberger, P.C. will be pleased to offer you a free complimentary consultation to discuss your Family Law issues or concerns.
by Robert E. Hornberger, Esq | Mar 25, 2013
Seeking Counseling During Your Divorce
Your divorce is likely to be one of the most emotional experiences of your life. After all, you have built a life with your spouse and now all of that is going to change. Even when it’s for the best, humans are generally predisposed not to like change, and change causes stress. You likely have many concerns that are weighing on your emotions: financial, children, your future … and many more. Uncertainty causes doubt, which causes worry, which, when it is not dealt with in a healthy manner, can have mental and physical health ramifications.
Protect Your Physical and Mental Health
Going through a Divorce can be trying for one’s mental health. You will likely experience symptoms of stress, anxiety, lack of sleep and depression. It’s very important to keep yourself mentally and physically healthy during your divorce process. For some people, there is still a stigma surrounding mental health therapy. They have an innate fear that going to therapy will make them look weak to others. In fact, the truth is exactly the opposite. Speaking to a professional to help you sort out your feelings and deal with your stress can help you look stronger during your divorce proceedings.
Strictly Confidential
It’s no secret that an extreme amount of stress and depression can alter the way one feels and acts on a day-to-day basis. Going to therapy allows you to talk about whatever is on your mind without fear of a loved one’s opinion, or getting unsolicited advice. Anything you say in therapy is strictly confidential and cannot be used in court. Going to therapy will enable you to work out what can often be conflicting emotions and feelings. It can enable you to think more clearly and act more rationally when going through your court proceedings. Those people who seek professional mental health counseling during their divorce are generally less likely to lash out irrationally during the proceedings, and sound more level headed and grounded in court.
Therapy Can Keep You from Going Backward
There is no manual on how to go through a divorce. Every person has different emotions and reactions during the proceedings. For those who may already have other mental health issues, therapy can help you from slipping back into old habits and relying on old “crutches” like over-eating or drug use. Therapy can help you work through and control your emotions throughout your daily life and especially in court.
Contact Us for More Information
If you have any questions or need help getting through your divorce, give us a call at 631-923-1910. The divorce law office of Robert E. Hornberger, P.C. will be pleased to offer you a free complimentary consultation to discuss your divorce and family law legal issues.
by Robert E. Hornberger, Esq | Mar 18, 2013
Keep a Journal of Your Divorce Proceedings
As a Divorce and Family Law Attorney in the Nassau and Suffolk County Courts, I see a lot of conflicting statements made on both sides. Making the effort to keep a journal of what is said by whom and when is a great way to keep everything organized in your mind and on paper. It allows you to keep track of your proceedings without forgetting anything and can also help to keep the opposing party honest. Keeping a journal is also an excellent outlet to vent your frustrations and feelings during the process. It is far better to get these feelings out on paper than for them to get the better of you in court.
Your Journal is an Effective Tool
When going through the divorce process, both you and your spouse will likely make many claims and demands. It is not uncommon for each side to have conflicting stories that contradict the other party’s statements. One way to make your story more believable to a judge in a Nassau or Suffolk County Court may be to keep a journal. Having your thoughts and observations recorded can make you appear more organized, rational and efficient. In addition, the mere fact that your “divorce journal” exists could deter your future ex from claiming anything that isn’t true.
The Key is in the Details
The key to keeping a successful journal is in the details. You need to refrain from paraphrasing and keep exact quotes the way they are, when possible. Be sure to keep the dates of all conversations pertinent to your divorce, your spouse, your children, and your marital assets. Avoid the temptation to type up your journal notes on your computer. Your handwritten notes have more authenticity in the courts because it is understood that digital documents are easier to change and modify than permanent writing in pen on paper.
Your journal can help your attorney and your case
When you keep an accurate journal of your divorce proceedings, your attorney now has physical evidence he or she can use to create sworn affidavits or find witnesses to bring in for testimony. Your journal can make the whole divorce process more streamlined and efficient for you, and help you achieve your divorce objectives.
Have More Questions? Seek Experienced Legal Counsel
If you have questions regarding keeping a journal of your divorce or any aspect of your divorce, give us a call at 631-923-1910 for a free, no-obligation consultation with the Divorce and Family Law Firm of Robert E. Hornberger or fill out the form on this page.
by Robert E. Hornberger, Esq | Mar 11, 2013
As a divorce lawyer practicing mostly in Nassau and Suffolk counties on Long Island, NY, I would like to share some of the most common questions I am usually asked by new clients. I hope this helps those of your who may be considering taking steps to end your marriage through divorce.
How do I start an action for divorce or separation in New York?
To start an action for divorce or separation, the parties must file a Summons, or Summons and Complaint in the Supreme Court of New York. After that, the Summons must be served personally on your spouse, along with what is called an “affidavit of personal service”. The affidavit must be filed in the court within 120 days from the day the Summons is served. After you serve your spouse with the Summons, he or she has twenty days to respond.
What are the grounds for a divorce in New York?
There are currently seven grounds for divorce in New York State:
- Cruel and inhuman treatment
- Abandonment for more than one year
- Imprisonment for three or more years
- Adultery
- One year of living apart under a separation agreement
- One year of living apart under a separation judgment by the court.
- Irretrievable breakdown of the marriage for a period of at least six months
The last three listed (5, 6 and 7) fall under a “no-fault” divorce category, while the others are based on the “fault” of one of the parties.
How long does a divorce take to complete?
In Uncontested cases, the divorce can be complete usually within 60-90 days, depending upon the county. If the matter is Contested, the divorce can take a year, or in worst case, more than three years.
Am I allowed to see my spouses’ financial records?
Both spouses have the right to complete disclosure of finances in New York. This includes the spouse’s income, expenses and assets. The disclosure must occur before the case can proceed to trial or settlement.
Want More Answers? Contact Us Today for a Free Consultation
If you have more questions regarding divorce in Nassau or Suffolk Counties in New York, please feel free to call the office of Robert E. Hornberger, P.C. at 631-923-1910 for a free consolation.
For more information about Divorce on Long Island, visit this page: Divorce Lawyers Answer Questions about Long Island Divorce
by Robert E. Hornberger, Esq | Feb 25, 2013
Reasons for Separation Agreement Modification
In our last post, we discussed what a Legal Separation Agreement is, why you might need one and how it differs from a Divorce Settlement. In this post, we discuss how your Divorce Lawyer or Family Law Attorney may need to modify the Separation Agreement. Despite all parties best intentions and due diligence, even the most sound and secure Legal Separation Agreements can miss a situation that comes to light after the agreement is in effect.
When a Legal Separation Agreement Can Be Changed
A separation agreement can change if it is based on fraud, collusion, mistake, duress which would be shocking to the public, contrary to public policy, or unreasonable to anyone with common sense. It could also change if it is extremely unfair. To prevent unfairness, there should always be full disclosure between the parties when creating or modifying an agreement. Assets are supposed to be divided equitably and fairly between the spouses, however, New York State Courts have routinely ruled that a party cannot claim a Separation Agreement is invalid or needs to be modified because the party undervalued an asset.
How to Modify an Separation Agreement
Parties that wish to modify should do so quickly. The New York Courts are more likely to modify or invalidate a separation agreement if the request is made close in time to when the agreement was signed by both parties. One attorney representing both parties is not necessarily unfair in regards to a Separation Agreement, but, it is a significant factor to be taken into consideration in determining fairness and whether the agreement will stay enforceable. An attorney representing both parties should fairly advise parties of the major issues and consequences of joint representation. In order to actually change the agreement, the parties usually get together, typically at a law firm or other neutral meeting place and try to mediate the agreement. In other words, the spouses should try to work out their differences or changes to the Separation Agreement outside of a Nassau County or Suffolk County Courtroom. If the couple cannot work out their differences with the help of their attorney, then, the party seeking to modify the agreement will need to commence what is known as a Plenary Action seeking to modify the agreement.
We’re Here to Help
At Hornberger Verbitsky, P.C., we often assist clients seeking to either modify an existing separation agreement, as well as represent clients to defend against a spouse who is attempting to modify the agreement. Each case will be won or lost based upon the facts and experience of their Divorce Lawyer or Family Law Attorney. Our firm has successfully modified and prevented the modification of many separation agreements in Nassau County and Suffolk County Courts on Long Island, NY. If you feel your separation agreement is unfair and should be changed, or, your spouse is attempting to alter your agreement and you believe it to be fair, we are here to help. Call today at 631-923-1910 or fill out the short form on this page and we will be happy to schedule a free consultation to discuss your case and how we can help.
by Robert E. Hornberger, Esq | Feb 18, 2013
What You Need to Know about Legal Separation
Legal Separation is often a first step toward a divorce. It allows a married couple to legally live separate lives while remaining married. In my practice as a Divorce Attorney representing clients in Nassau County and Suffolk County courts on Long Island, I often see couples use the Legal Separation as a “trial run” before getting a divorce. It allows each person to live separate lives for a time to determine if they really want to be divorced. Separating from a spouse can be a difficult time for anyone. It’s strongly advised that when going through a separation, the parties write out a Separation Agreement. A Separation Agreement addresses all the same issues as those addressed during the divorce process, including division of property, assets and debts, child custody and support, visitation, etc. Should you eventually divorce, the Separation Agreement can be converted into a divorce. There is a strong public policy in favor of separation agreements. Courts have said parties in domestic relations are encouraged to settle their own affairs; a separation agreement achieves this goal.
Creating the Legal Separation Agreement
In New York, when parties enter into a separation agreement, they must live separate lives. Most couples choose to live in separate households and live their lives as though they are no longer married. This is often referred to as “living separate and apart” which is required if the party later seeks to “convert” the separation agreement into a divorce. The agreements must be in writing. In addition, they must be signed by each party, and verified under oath before a notary or the parties must have an affidavit signed and sworn to by a witness. Further, the separation agreement must be filed with the clerk of county where either party resides.
Benefits of the Legal Separation Agreement
According to New York Domestic Relations Law 236 (B) (3), the agreement itself should be able to settle issues and anticipate future problems; it allows for the parties to mutually benefit on family decisions going forward. If needed, the parties have the ability to deviate from the typical New York Law in order to fit the needs of the couple. The agreement can be used as a basis for a divorce action. This requires living apart more than one year after execution of the separation agreement and the compliance with the agreement. In order to properly maintain the agreement, it needs to be fair and reasonable at the time of execution, and not overly benefit one party or the other. As a Long Island Divorce Lawyer and Family Law Attorney, I typically help spouses negotiate separation agreements. My daily experience with divorce and separation, keeps me up-to-date with the most recent changes in the law, as well as the most modern separation agreements and clauses in use in Nassau County and Suffolk County Courts on Long Island, NY. If you are considering seeking a legal separation from your spouse, I invite you contact our office for a free consultation, during which time, we will discuss the unique circumstances of your case, and devise a course of action suited to your needs. Call us today at 631-923-1910 or fill out the short form on this page to schedule a free, complimentary consultation.
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by Robert E. Hornberger, Esq | Feb 4, 2013
Cohabitation: Why People Do It & Legal Issues
As a follow up to our last post on alternative forms of marriage and divorce on Long Island, NY, another alternative, “non-marriage” is known as Cohabitation. This is when unmarried couples live together, but never get a marriage license. Without the protection of legal divorce proceedings these living arrangements can have serious legal consequences if the couple decides to end their relationship.
What is Cohabitation?
These days, most of us know people who live together, sometimes for many years, and represent themselves as husband and wife, but are not legally married. These couples have their own specific reasons for cohabitation rather than legal marriage. As a divorce attorney, I think I’ve heard them all, but the most common reasons I’ve heard include:
- Ensuring your compatible living together before marriage (also known as “testing the water”)
- It’s a cheaper option to marriage
- Marriage is ‘just a piece of paper’
- We don’t have to get divorced if it doesn’t work out
Consider Legal Protection
There are as many reasons for couples not to marry as there are personalities. On the other hand, cohabitating with another person, particularly for an extended period of time and effectively living as if you are married without the legal protections marriage can lead to serious issues if and when one of the parties decides to end the cohabitation arrangement. Unlike legally married couples, you do not have the protections of divorce proceedings.
It may be wise to consider protecting yourself and your partner through a legal agreement even if you don’t want to get married. States view these agreements differently.
Reasons for a Contract
If you are an unmarried couple living together, it may make sense for you to consider a written agreement to define the rights of each partner in the event of a breakup. Situations where a written agreement may be beneficial are:
- House purchased in one partner’s name due to bad credit of the other partner.
- Sharing a bank account with your partner
- You are engaged in business affairs with your partner
- One person pays most of the household expenses
- One person is supporting the other through school
Laws Vary by State
There are states where unmarried couples that are living together are not entitled to split their assets. However, courts do allow enforcement of written and implied agreements between cohabitants unless it is based on sexual services. In situations where there is no written contract, and one of the parties denies he or she wanted to be in a cohabitation agreement, the court looks to the “implied intent” of the parties.
Get It in Writing in New York
However, New York does not follow this approach. New York recognizes only written or oral agreements. New York Domestic Relations Law further states that domestic partnership cannot be vague, and should not violate public policy. The agreements typically follow the normal standards of New York Contract Law.
Seek Legal Counsel for any Contract
It’s always good to make sure everything is defined when the parties are cohabitating together. My firm can help you create a written agreement that can be enforced in a court. Please contact our office for a free consultation at (631) 923-1910.
by Robert E. Hornberger, Esq | Jan 28, 2013
Can We Get Our Common Law Marriage Divorced in a Long Island, New York Court?
As a divorce attorney on Long Island, NY, I speak to many couples about specific legal details of marriage law in the state. Most of us think of marriage as a union between two people that includes some kind of ceremony, whether that takes place in a religious setting or a legal one. However, this is not always the case. While this may be the common perception, there are other forms of marriage recognized throughout the United States and around the world.
What is Common Law Marriage?
One of the most common forms of non-traditional marriage is what’s known as “Common Law” marriage. A Common Law marriage is generally considered a union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by Cohabitation.
Legality of Common Law Marriage
The primary question about alternative marriage is the legality of such a union. This question becomes more important because legal marriage affects property ownership, rights of survivorship, spousal benefits, and other traditional marital issues. With so much at stake, marriage has become a matter regulated by law.
Marriage is Governed by State Law
In the United States, the regulation and recognition of marriage is a right reserved to the states, not the Federal Government. Marriage regulations and statutes are governed by state law. Each state has the right to set the rules regarding marriage in its state and may place restrictions on marriage, such as age requirements and the prohibition of interfamilial marriage. Most states also recognize a marriage as legal only when it follows certain procedures. Typically legal marriages are required to include a witnessed ceremony presided over by a lawfully authorized person, and fulfillment of specific license requirements. However, in some states, the marital union of a man and a woman can still be achieved in the most simple, time-honored ways.
Where is Common Law Marriage Legal?
In addition to traditional marriages, there are other types of marriages and family situations that entitle couples to rights in New York State. An alternative to a traditional marriage is called a Common Law Marriage. Currently, ten states and Washington, D.C. recognize the ability to create a common law marriage, including:
1. Alabama
2. Colorado
3. Iowa
4. Kansas
5. Montana
6. New Hampshire
7. Rhode Island
8. South Carolina
9. Texas
10. Utah
11. Washington, D.C.
N.Y. Recognizes Common Law Marriages of Other States
All states, including New York state, recognize a valid common law marriage even though the state itself does not allow common law marriage to be created. New York does not allow the creation of common law marriage, however, will recognize the marriage if it is created in one of the other states or districts that do. To be defined as a common-law marriage within the states that allow its creation, the two people must:
• agree that they are married
• live together
• present themselves as husband and wife
You Can Divorce a Common Law Marriage in NY
Since you can obtain a divorce in New York State from a valid marriage that occurred outside of New York, parties can obtain a divorce from their common law marriage in New York. That marriage must be valid, meaning created and recognized in one of the Common Law Marriage states. If you have any questions regarding the ability to obtain a divorce from your common law marriage in New York, please do not hesitate to contact our office for a free consultation at (631) 923-1910.
by Robert E. Hornberger, Esq | Jan 2, 2013
Your Social Media Posts Can Help / Hurt Your Divorce
Social Media such as Facebook, Twitter, LinkedIn, Google+, MySpace, etc., are becoming ever more important in Long Island divorce and family court cases. Both litigants (the parties involved in the case) and practitioners (lawyers, attorneys, etc.) need to be aware of the ramifications of anything you or your client or the opposing party posts to social media sites.
Social Media Posts Can Be Used Against You
Your social media posts can be used against you or the opposing party or counsel and can have a critical effect, either negative or positive, on your divorce or family law case. Both Nassau County and Suffolk County Family Courts have admitted social media posts or statements as evidence for and against litigants in the case.
Criminal versus Civil Cases
There is a very important major distinction between criminal and civil cases of which most litigants are unaware:
- In Civil Cases, such as Divorce and Family Law, a defendant does not have a right not to testify. In other words, you can be required to testify against yourself. You, as either a plaintiff or a defendant, can be called as a witness.
- In Criminal Cases, the defendant has a right not to testify and can refuse to be a witness against him or herself.
‘Hearsay’ Can Be Used in Civil Cases
We’ve all seen lawyers on TV cry, “Objection: Hearsay!” to get oral evidence made in court disregarded by the judge and jury. But what exactly is hearsay and when is it not admissible? Hearsay is loosely defined as any out of court statement made by a party or witness that is being introduced during the course of a hearing or trial to prove the truth of the out of court statement. Generally, hearsay is not admissible during the course of a hearing or trial because of its inherent unreliability, however, there are exceptions. A major exception to the hearsay rule is that a statement made out of court by a party to an action is deemed admissible, because, that party has the ability to take the stand during the hearing or trial to refute the statement. This is where Social Media comes in. In a civil case, Social Media is admissible against a litigant because the litigant has an opportunity to refute the statement in court.
Be Careful What You Post on Social Media
Parties to civil actions, particularly divorce and family court matters, need to know that the statements they make on social media such as Facebook and Twitter can be used against them at the ultimate hearing or trial. For instance, a party to a divorce action wherein spousal support is an issue may not want to brag on social media that they recently received a raise at work. Or, in a custody case, a parent seeking custody may not want to brag how they went out drinking while their child(ren) were in their custody. The examples are endless.
In conclusion, parties to civil actions, particularly divorce and family court matters on Long Island and throughout New York, need to curtail and be very careful about what they post on social media sites. Attorneys representing clients in these types of matters should try to ethically and carefully discover the social media statements made by the other party. Be aware that every jurisdiction has its own ethical rules to which lawyers must adhere when attempting to acquire these types of statements.
The attorneys at Hornberger Verbitsky, P.C. are conscientious about staying abreast of the latest trends in legal matters in Nassau County and Suffolk County Divorce and Family Law Courts on Long Island, NY and are available to answer your questions regarding these matters at any time. For a free private consultation about your needs, contact the experienced attorneys at Robert E. Hornberger, PC at 631-923-1910 or fill out the form on this page and we’ll get right back to you.
